E.M., etc., Plaintiff–Respondent, v. PAULINO (2026)

Order, Supreme Court, Bronx County (Paul L. Alpert, J.), entered June 24, 2025, which, to the extent appealed from as limited by the briefs, denied defendants' motion for summary judgment dismissing the cause of action for negligence, unanimously affirmed, without costs.

The record presents issues of fact as to when and whether defendants had notice of the bedbug condition that allegedly injured the infant plaintiff.  Although some of plaintiff's mother's testimony indicated that her direct complaints to defendants, who co-owned the premises, occurred only after the bedbug bites began, other testimony showed that plaintiff continued to suffer from bites for a period of time throughout the summer of 2019 without any action from defendants (see Martinez v. Contreras, 216 A.D.3d 532, 532, 189 N.Y.S.3d 482 [1st Dept. 2023] ).

Moreover, Department of Housing Preservation and Development (HPD) records support plaintiff's mother's testimony that she made an HPD/311 complaint about bedbugs in her apartment more than a month before plaintiff was bitten, and one of the defendants testified that he did not remember whether he received notice of any 311 complaints.  Defendants otherwise failed to establish entitlement to judgment as a matter of law, as a party “cannot obtain summary judgment by pointing to gaps in [its adversary's] proof” (Miah v. Pipe Dreams Realty v. Corp., 214 A.D.3d 575, 576, 187 N.Y.S.3d 17 [1st Dept. 2023] [internal quotation marks omitted];  see Mohammed v. Silverstein Props., Inc., 74 A.D.3d 453, 454, 900 N.Y.S.2d 878 [1st Dept. 2010] ).